Pontificating on the Bolt case again

October 17, 2011 – 6:21 am

By Legal Eagle

This post involves further thoughts on the Eatock v Herald Weekly Times case. I have attempted to clarify a few things, and to illustrate on a practical basis exactly why I think the legislation and the decision could be problematic.

Introductory remarks on Bolt, affirmative action and group rights

First, I should reiterate that I think that Andrew Bolt’s comments on skin colour and race are neither helpful nor accurate. If I had been responding to his writings, I would have exhibited the following picture (thanks to DEM for making it reality):

Do you know what? Both these little girls are correct. The girls are sisters: fraternal twins whose “mixed-race” parents each had a black father and a white mother. The photo exemplifies why using skin colour to argue that someone is not a genuine member of a particular race or ethnicity is problematic. It also shows that the issue of race and ethnicity identity is more than skin deep.

Bolt’s writings blurred the issues of race and ethnicity on the one hand, and need and desert on the other. He inferred that certain persons were not deserving of aid because they did not look Aboriginal enough, the implied corollary being that more Aboriginal-looking persons would need aid more. Mind you, I think that this dilemma goes the heart of affirmative action based on race. Racial discrimination is based on judging people based on skin colour or racial features; and racial affirmative action is the inverse of that — assisting certain people on the basis of skin colour or racial features. If you say that a particular race is entitled to benefits, a danger is that people may draw the inference that the more one looks like one belongs to a particular race, the more deserving one is. But how much a person looks like they belong to a particular race is simply a matter of genetic chance.

Perhaps the root problem at the heart of any discussion on the matter of measures for Aboriginal people is the nature of affirmative action. I must confess to ambivalent feelings on the issue. In the main, I do not believe affirmative action is an appropriate measure to address disadvantage, but I have shifted my opinion on this since I was younger, when I would have been strongly in favour of it. However, in a situation where the members of a particular identifiable group within society are more disadvantaged on average than the rest of society, and in the Aboriginal context in particular, I am reluctant to wholly reliquish a role for affirmative action, particularly in education.

Similarly, I am ambivalent about the notion of group rights. No, I wouldn’t rule them out altogether, but I would treat them gingerly. There is more strength when action is taken in a group (which is why I am a member of a union) but sometimes, the legitimate membership of the group is difficult to define. Who makes up the group? Who speaks for the needs of the group? Who takes action on behalf of the group? Perhaps, too, my intrinsic distrust of groups is coming out. On a personal level, I have never found a large group of people with whom I “fit in” and which accurately represents my concerns. Furthermore, I find that group dynamics can sometimes result in the suppression of legitimate individual concerns and difference (in the interests of providing a united front and a clear message). Groups have positive aspects, and one can often do more in a group than one can achieve on one’s own, but they are not necessarily always a Good Thing.

Justification and vindication

Mark Bahnisch’s recent post at the Drum notes that the response from indigenous activists towards the case has been overwhelmingly positive. I must say I am not surprised in the least. As I’ve said previously, there was a definite sense in which the judgment was intended to vindicate feelings of anger and hurt arising from Bolt’s articles. Consider, for example, the recent press release on behalf of Tarwirri, the Indigenous Law Students and Lawyers Association of Victoria:

Ms Burchill [the immediate past president of Tarwirri], who is a Victorian Yorta Yorta woman, said the Aboriginal people involved in the case were to be commended for standing up for their principles.

“Skin colour is not the only determinant of Aboriginality – it is about culture and the community in which you were brought up,” she said.

“Like all cultures, ours is not static and has evolved over time.”

The Federal Court hearing in March heard that a number of Mr Bolt’s columns, published in the Herald Sun, were offensive to the group members for their imputation, amongst other things, that they pretend to be Aboriginal to access benefits.

“We are proud that these people have come together to test the law and hopefully discourage similar articles being published in the future,” Ms Burchill said.

Ms Burchill’s point about static culture is an interesting one. To my mind the stereotype of the Noble Savage is a terribly damaging one for indigenous people. Bolt’s articles carried traces of it – he seemed to infer that “real” traditional Aborigines would be deserving of aid whereas less traditional pale-skinned Aborigines would not. In invoking the Noble Savage, he is hardly alone, and indeed, many progressive people of my acquaintance eagerly embrace this stereotype as well (without any malicious intent whatsoever). But real Aboriginal people cannot help but come up short when compared against an idealistic stereotype. Also they may be held to the stereotype, and if they deviate from it, they may be accused of being “non-genuine”.

Mark Bahnisch had some interesting comments on why the plaintiffs in the Eatock case chose to take action under the RDA:

The basic answer is the significance of the core issues – the great power exercised by the media in shaping and reinforcing opinion, and the potential ramifications for many, many “light skinned Aborigines” who are neither prominent nor named in Bolt’s commentary. These issues go far beyond the deleterious impacts on the plaintiffs themselves (which, nevertheless, should not be minimised).

The plaintiffs felt, as I understand it, that their action was necessary to de-individualise the issue (and to make it less about “Andrew Bolt” as well as about themselves), but rather to collectivise it, to draw a line in the sand, and to protect Indigenous people against such vilification. They do not argue, or believe, that the RDA is perfect, or that legal action is the sole or primary means of bringing about social change. But it does seem perverse that a law on the books should not be used, which really is the crux of the defamation alternative which has been so strongly urged on them.

My co-blogger, SL, is of the opinion that it would have been more advantageous for the plaintiffs to bring a claim in defamation, because Bolt would not have been able to play the “free speech card” nearly as effectively; by contrast, by concentrating on “offence”, the RDA action allowed Bolt to argue that his freedom of speech was being impinged upon.

For my part, I understand why the plaintiffs went down the RDA route. If a law is on the books, if it covers the situation, and if is tactically advantageous to the plaintiffs in this particular claim, then they are entitled to use it. I don’t question their right to use an existing law, nor do I question their motives. That is not an issue for me in this case. The judge was correct to apply the statute in that case, and it would have been entirely illegitimate if he had ignored a duly enacted statute. As will become evident further in this post, the real issue for me is the potential breadth of the legislative provision itself, but the narrow way in which Bromberg J interpreted the defences under s 18D could also have problematic consequences.

As I’ve mentioned in my previous posts, there are a number of reasons why the plaintiffs would not have wanted to pursue individual defamation claims. In addition, the collective nature of the action is important. There is strength in numbers, and it was clearly advantageous for some of the plaintiffs with weaker claims to be in a group with stronger claims. I can’t imagine Geoff Clark would have gotten very far with defamation on his own, for example. Even if Bolt’s columns had been defamatory and there had been no available defence, I can’t help thinking of the case of Grobbelaar v News Group Newspapers Ltd[2002] UKHL 40, [2002] 1 WLR 3024, where the former Liverpool FC goalie sued The Sun for libel. (I always pronounce Grobbelaar’s name in my head with a Skouser accent, incidentally). Grobbelaar was intially awarded £85,000, but on appeal, the House of Lords slashed his award to £1 (the lowest coin in the realm) and ordered him to pay The Sun’s costs, estimated at £500,000. This kind of redress is sometimes described as “contemptuous damages” – not just nominal, they are downright contemptuous of the plaintiff. Lord Bingham observed in the course of his speech (at [24]):

The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection. Until 9 November 1994 when the newspaper published its first articles about him, the appellant’s public reputation was unblemished. But he had in fact acted in a way in which no decent or honest footballer would act and in a way which could, if not exposed and stamped on, undermine the integrity of a game which earns the loyalty and support of millions. Even if the newspaper had published no more than what, on my interpretation of the jury’s verdict, it was entitled to have published, the appellant would have been shown to have acted in a way which any right-thinking person would unequivocally condemn. It would be an affront to justice if a court of law were to award substantial damages to a man shown to have acted in such flagrant breach of his legal and moral obligations.

Yowch! Still, I can imagine that Clark might have similarly lacked reputation after the well-publicised case where Carol Stingel successfully sued him in a civil law claim after she alleged that Clark orchestrated an incident in which she was gang-raped in 1971.

The other issue with defamation is that the truth or otherwise of Bolt’s statements would have been examined with a fine-toothed comb. I can’t imagine that anyone of any creed, colour or background would want their family background combed over in court, myself. I’m sure an Aboriginal person would immediately think of the ‘Stolen Generations case’, too, in which the Aboriginal plaintiffs’ accounts of their family history were not accepted fully by the court. (Family history is a weird thing, incidentally. My mother has been doing a lot of genealogical research into our family, and she has discovered that various well-worn and long-held family beliefs about our history are entirely without basis. I know I really wouldn’t want my history raked over in court, because by its very nature, the things that you have always believed about your family are often not as you might think.)

Given that I am usually a fan of protecting the rights of indigenous peoples, why am I not cheering this decision then?

My utilitarian streak

I have realised that my doubts about this case, and about the legislative provision itself, come down to my utilitarian, pragmatic streak. I want a law that not only produces a just outcome for litigants in a particular case before the court, but a law which produces the best outcome for society in general over time. And I think that this is why I am wary of the Eatock decision, and why I am very wary of the legislative provision itself. It is in this way that I think I differ from Mark Bahnisch; he sees the decision as narrow in its compass, I see it as potentially broad. Us lawyers are always looking for ways in which precedent can be stretched.

That being so, I concede that David J had a point when he said (over at Strange Times in a comment thread):

…If, for example, Aboriginal people feel so oppressed by current discourse that they see using this law against Bolt as one of the only ways they can hit back, why would they give that up just because we want them to?

If we’d like the Aboriginal people who support the action against Bolt to think and act differently, but we offer no other solution to their political needs, then they will ignore us.

Nonetheless, I do invite Aboriginal people who support the action against Bolt to consider the broader ramifications of the decision. We may find that it opens a “can of worms” for both indigenous people and for broader Australian society. In saying this, I do not deny that the effects of the decision may be positive and vindicatory for indigenous people, but there may also be profoundly negative ramifications which may emerge. Like everything, there’s an upside and a downside. The legislative provisions and the case may be used in ways which may not be expected. (I can hear some people sighing and saying, “Oh, not the whole “slippery slope” or “thin edge of the wedge” argument!” Shortly, yes it is, but I am going to try to demonstrate how this could occur with real-life examples.)

Unfortunately, the judge took into account not just these aspects of Bolt’s articles but also their “inflammatory and provocative language” – that is unfortunate, because we should not be told that our speech is unreasonable or in bad faith merely because it is snarky or satirical, or passionate or denunciatory. There may be cases where speech is so hateful (“For these reasons, I conclude that Canaanites are basically rats and cockroaches…”) that any attempt to dress it up as a good-faith contribution to discussion of a matter of public interest is clearly a sham. But we should not be so quick to draw such a conclusion that legitimate satire or denunciation is thought to negative reasonableness or good faith.

Here is where I part company with any people on the Left who think there’s nothing to worry about. I submit that the judge’s discussion goes further than was necessary. It has too great a tendency to undermine the reasonable/good faith defence wherever it appears in legal statutes. Given Bolt’s actual behaviour, the outcome may be correct on the facts, even if a broader interpretation of the defence is adopted, but all the same… Hopefully this aspect will be addressed in any appeal.

More generally, I am not absolutely against laws that attempt to curtail Nazi-like racial hate propaganda. We know from recent history how damaging this can be. Arguably, some of the state laws address that, though it is also arguable that some of those are poorly drafted and go further than is necessary. In any event, laws such as these forbid a person A from saying such things to audience B as “people who fall into class C are rats and cockroaches – let’s exterminate them!”

However, the Racial Discrimination Act is not drafted in this way. Perhaps it should be. It is not a law about incitement of third parties to racial hate and possibly violence, but a law about saying things that are offensive to a second party. Perhaps there is still a place for such a law, but it will have to be a limited one. The starting point should be that we generally don’t have a right to be protected from offence. Something more is required.

I concur. I would prefer a law preventing incitement to racial hate and violence to the present law, and to limit the operation of any law on offensive speech. But let me move on to my hypothetical examples to illustrate precisely why.

Example No. 1: The Aboriginal Guest Lecturer

When I was a first year law student, one of our seminars was taken by a guest lecturer, an indigenous woman. During the course of the class, she got the class to participate in an exercise. She divided the class into “Gubbas” and “Wurundjeri mob” (actually I don’t remember the precise tribe she named, so I’ve just inserted my local tribe). I don’t actually remember what the exercise was about precisely, but I do remember that the Gubba side of the class was given entirely unpleasant characteristics and in the scenario we were given, the Gubbas were hassling the Wurundjeri mob. “Gubba” is a South Eastern Australian Aboriginal word for white person derived from “government”. As a callow 18-year-old, I must confess that I was slightly offended by the exercise. My silent thought was this: “If I were conducting this exercise, I would never call the designated Aboriginal side of the class by a slang word for Aboriginal people. And nor would it be appropriate for me to give the Aboriginal side of the class unpleasant and stereotypical characteristics. I would be hauled up for racist stereotyping and rightly so.”

I guess I try to live by the Golden Rule (one should treat others in ways that one would like to be treated) or, at the least, by the Silver Rule (that one should not treat others in ways that one would not like to be treated one’s self). The counter argument to an offended person is that the marginalised minority group seeks to empower themselves by challenging and criticising the power of the majority group, and thus it is an important aspect of challenging the dominant paradigm even if (or perhaps especially if) that challenge is offensive to some. Perhaps the aim of the exercise was to teach the Gubba side of the class what it was like to be stereotyped and called a derogatory name; sadly, I am sure that the guest lecturer had experienced both stereotypes and derogatory names at many times in her past. Consequently, the exercise could be said to have an instructional purpose.

But the question I have is this: would this class exercise now potentially infringe s 18C of the RDA? The class took place over 15 years ago, so it wasn’t an issue at that point. However, presuming the RDA provisions did apply, what if there had been a non-Aboriginal person in the class who had been deeply offended by the exercise and had filed a legal complaint? Remember, s 18C of the RDA states as follows:

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

…

(2) For the purposes of subsection (1), an act is taken not to be done in private if it:

(a) causes words, sounds, images or writing to be communicated to the public; or

(b) is done in a public place; or

(c) is done in the sight or hearing of people who are in a public place.

(3) In this section:

“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

Arguably, the way in which the exercise had been designed (complete with racial stereotypes and slang words for a racial group) was “because of” the “race, colour or national or ethnic origin” of the majority of the people in the class. It is likely, I think, that the lecturer would have a very clear defence under s 18D(b) of the RDA, given that the act was done “in the course of any statement, publication, discussion or debate made or held for any genuine academic…purpose or any other genuine purpose in the public interest.” But still, as Russell Blackford pointed out, the way in which Bromberg J structured the defence depended very much on notions of tone and civility. Perhaps you will think that I am ridiculous to even contemplate someone bringing an action in these circumstances…but…as Bruce Everett points out in a post that is worth reading here, it is not beyond the realms of possibility:

Consider some context from overseas…

‘During the year in which Michigan’s speech code was enforced, more than twenty blacks were charged – by whites – with racist speech. As Strossen notes, not a single instance of white racist speech was punished.’

The racist speech in question causing offense rather than harm, on campus, during the period of Strossen’s campaigning against the speech codes with the ACLU in the late 80s, and early 90s. Yeah I know, those poor white college dudes getting it stuck to them by the ACLU once again. It’s political correctness gone mad… or something.

What if you got a judge took that kind of approach to the class exercise, and decided that the exercise was not done reasonably or in good faith? Personally, I’d be prepared to give the lecturer a defence quicker than you could wink, and give short shrift to anyone offended by it; but it is not totally beyond the realm of possibility that others might think otherwise. What is reasonable and what is in good faith is very much in the eye of the beholder when it comes to offence.

Example No. 2: The Max Brenner Protesters

Recently, there have been a series of protests by left-wing groups at Max Brenner chocolate shops in Sydney and Melbourne. Socialist Alternative and Green Left Weekly both have articles which explain the reasoning behind the protests. The Strauss Group, which controls Max Brenner shops, is said to be a strong supporter of the Israel Defence Force and in particular, of two brigades within the IDF which are alleged by Socialist alternative to have committed severe human rights abuses against Palestinians.

Picture from The Sunday Age by Angela Wylie

As the Sunday Age reported, a number of people were arrested in July in the wake of the protests at the Queen Victoria building in Melbourne, and there is intense argument about whether the protests are legitimate:

The campaign has raised questions about the limits of legitimate protest. Arrests have been made and ugly words abound. For some, the sight of strident young people blocking the way into Jewish-owned shops evokes images of persecution.

The boycott campaign has no formal leadership and no agreed tactics. But it does have an acronym – BDS, for boycott, divestment and sanctions – and has adopted methods from campaigns against South African apartheid.

”Apartheid” was one of the words tossed around at Max Brenner’s on a Friday night 11 weeks ago when 50 or so young protesters formed up outside, blocking the front door. They shouted slogans: ”Out, out, Israel out”; ”Max Brenner, you can’t hide, you’re supporting genocide”; and ”Brenner, come off it, there’s blood in your hot chocolate.”

On a video of the protest a speaker promises more pickets at Max Brenner’s and ”all the other scumbag corporations” that support Israel.

One of those arrested is Omar Hassan, a politics student at Monash University. ”The fact that Max Brenner sells chocolate and sweets in Australia while supporting the Israeli army makes it an extremely credible target and also an extremely tangible target,” he told The Sunday Age. He insists that Max Brenner’s is not a target because it’s Jewish, but because it’s linked to the Israeli army.

Now, I suspect that one’s opinions on this issue would generally (a) depend on political allegiance and (b) go in the opposite way to the Bolt outcomes. That is to say, the Left is more likely to defend the BDS boycott, and argue that the protesters have a legitimate right to protest the oppressive actions of the Israeli government, whereas the Right is more likely to argue that the protesters are rabid lunatics who should be prevented from voicing their concerns. Yes, it’s one of those polarising topics. Of course, this is a general rule only. (My personal opinion on anti-Semitism and the boundaries of legitimate criticism of Israel is here.)

Let’s think about the application of s 18C to these protests. Section 18C makes it unlawful for a person to do a public act if it is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” and if it is “done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.” Arguably, the protests are ‘because of’ the ‘national origin’ of the people who run the Max Brenner stores. However, some go further and argue that the protests are not just in relation to the national origin of the Max Brenner store, but that the protests are anti-Semitic, and that they draw upon a number of unpleasant historical anti-Semitic practices. For example, the Executive Council of Australian Jewry President, Peter Wertheim, said that he found the campaign against Max Brenner worryingly akin to the anti-Jewish Nazi boycotts in the 30s which led up to the Holocaust. John Searle, president of the Jewish Community Council of Victoria, was offended by the slogans used by the protesters, particularly chants about blood in chocolate, and genocide. He argued that the argument that the chocolate had blood in it had echoes of the “blood libel” (the anti-Semitic slur that Jews consume human blood). So clearly, the statements by the protesters are likely to offend, insult, humiliate or intimidate. Consequently, it is at least highly arguable that s 18C would apply to the protesters.

Would any of the defences pursuant to s 18D apply? Section 18D, you may remember, reads as follows:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

Now, clearly s 18D(a) does not apply. Section 18D(c) is also unlikely to apply, as it seems to be intended to cover public reporting of events. Does the protest fall within s 18D(b), i.e. was it made for a genuine purpose in the public interest? And if it does fall within this section, will a judge find that the actions of the protesters reasonable and in good faith? The way in which Bromberg J defined reasonableness and good faith depended very much on tone and civility of the comments. I think that the protest may not be covered by s 18D, and therefore that the conduct of the protesters may contravene the Racial Discrimination Act.

If you are a right wing person thinking, “No, these guys should be banned,” consider whether that is consistent with your opinion on the Bolt case (where, by and large, right-wing commentators supported Bolt’s right to freedom of speech). Presuming that these guys do not indulge in property damage, physical violence or secondary boycotts (which raises the issue of contravention of other laws) why should Bolt have a right to speak, and these protesters not have a right to express their opinion?

If you are a left wing person thinking, “These guys should be allowed to protest even if it offends certain people, and makes them think about the genocide, death and displacement of their ancestors”, again, consider whether this is consistent with your opinion on the Bolt case. Surely then, by the same token, Bolt should be allowed to write his columns, even if it offends some people and makes them think about the persecution, death and displacement of their ancestors on the basis of race (again, leaving aside for the minute the issue of whether or not Bolt’s information was correct, which raises the issue of defamation).

By and large, I suspect the position of many is that whether an act is done “reasonably and good faith” is to be judged according to what they personally think is reasonable and in good faith. And that is entirely my problem with s 18D. If we are to ban Bolt, we must ban the Max Brenner protesters; if we are to allow Bolt freedom of speech, we must allow the Max Brenner protesters freedom of speech. Whether we allow someone to speak or not under these provisions is so incredibly subjective and depends so much on what one believes is reasonable and in good faith. But we should be consistent and not allow our own political prejudices to get in the way of these things. A court, by the way, will try to approach these issues as objectively as possible, so that Bolt and the Max Brenner protesters are treated alike.

Example No. 3: Speech within Aboriginal communities between Aboriginal people

The other area where this decision may have negative ramifications is within Aboriginal communities where there are often different opinions among Aboriginal people. There was an interesting point made by Wesley Aird in The Australian the other day, namely, that there are immense power struggles within Aboriginal communities with regard to who has a right to speak for them, who makes decisions, and who gets the benefits. He alleges that there is a lot of bullying and intimidation in that context.

Certainly, from my own marginal involvement in this area (tutoring Aboriginal students when I was at uni) I saw that such battles could be vicious. One of my students was physically attacked, her home was trashed and she was verbally abused. She alleged that this occurred because she happened to question the approach of certain activists in the local community. She had a nervous breakdown as a result. (Incidentally, while groups can be very empowering, this incident illustrates a potential downside to a very group-oriented culture — it can be difficult at times to stick one’s head above the parapet and express an individual opinion which differs from that of the majority of the group).

Thus, I think this finding may add further complications to the already vexed question of who can speak and who cannot speak for those communities. Indeed, take the fracas between Larissa Behrendt (incidentally a plaintiff in the Eatock case) and Bess Price as another example of a struggle over who gets to speak for a particular group of people (see my post on the matter here). Behrendt published an offensive tweet after seeing Price featured on Q&A. Price is a vocal supporter of the Federal intervention into indigenous communities, and Behrendt is not. What if Behrendt had chosen to take action against Price in relation to certain comments she made to the media about Behrendt after being told about the offending tweet?

“I want what she has for my children…The white blackfellas should be happy about the lifestyle they have. They should help us rather than trying to put a barrier between us and what we should be saying. Who does she think she is? I’m very angry about that. How dare she have a go about me without talking to me or confronting me face to face if she has a problem with me. They think that they can control us, that I shouldn’t be commenting or having an opinion on indigenous issues. …” (my emphasis added)

The context is that Price is a traditional Aboriginal woman who lives in a traditional community; Behrendt is a middle-class university lecturer living in the city. Price’s comment was made “because of” Behrendt’s race and colour and thus potentially contravened s 18C. Never mind that if we are talking of offence, Behrendt’s initial comment in relation to Price was vastly more offensive (in my eyes, at any rate — I won’t repeat it here) and Price’s comment could be seen as a legitimate angry response. Price would argue that she was clearly entitled to a defence under s 18D(c)(ii), in that she was making “a fair comment on any event or matter of public interest” that was “an expression of a genuine belief” held by her. But again, it depends whether a judge would be prepared to find that her comments were reasonable and in good faith. I’d presume that most judges would be prepared to find so, but you never know.

There are fault lines between race, class and tribe within Aboriginal communities. That makes it all a lot more complex.

Conclusion

I’d invite those who are cheering the victory over a rather uncivil and provocative commentator to consider this post carefully. It may be that my gloomy prognostications are wrong. I hope so. Perhaps all will be jolly and we’ll all be more civil when we debate vexed issues. But I’m a lawyer; it’s in my nature and training to think of worst case scenarios and ways in which the law could be stretched unduly. My commentary on the Eatock case is not just about the merits of this particular case. A case will always have wider ramifications, and sometimes laws targetting the opinions we are allowed to express have unforeseen consequences.

Update: Please read Ken Parish’s excellent piece here at CDU Law Online. He makes a strong argument that there is a liberal reason to say that speech which fails to respect human dignity may be a basis upon which to regulate such matters, but offence is not a basis. I’m still musing over his post – I’m sure I will have more to say anon.

I venture a critique of a possible slippage in the concluding paragraph [no not the “PS Katy Barnett’s shout-out…”]:

…
I’m not at all sure that can still be said in light of Bromberg J’s reasoning. Despite the High Court’s warning in Lange that “the vigour of an attack or the pungency of a defamatory statement, without more” is not enough for a plaintiff to succeed, Bromberg J appears to have take just such an approach in finding a breach of the RDA:

[quoting Bromberg J] The tone and gratuitous nature of both the specific and general comments made contributed to the disrespectful manner in which the people in the ‘trend’ were dealt with and contributed to the intimidatory effect of the articles.

The extent of mockery and inflammatory language utilised by Mr Bolt to disparage many of the individuals which the Newspaper Articles deal with, far exceeded that which was necessary to make Mr Bolt’s point.[quote ends]

Lange is defamation. Eatock v Bolt is RDA where Bromberg J applied the tenets of the fair comment defence from defamation as developed in the general law. As LE and others have noted on the SkepticLawyer blog, the glaring difference in the RDA s 18D defence is the express elevation of “reasonably and in good faith”.

Bromberg J at 408:

Ms Eatock also relied on the provocative and inflammatory language utilised in the Newspaper Articles and its lack of restraint as demonstrating an absence of reasonableness and good faith. She also relied upon a number of what were described as gratuitous statements in the Newspaper Articles.

To my mind, it’s not so surprising that the lens turned to provocative, inflammatory and gratuitous language in grappling with reasonableness and good faith. And with it the barn door was naturally open to pungency (something to do with livestock? — a silly mixed-metaphor, sorry).

Maybe a redraft of the RDA should remove “reasonableness and good faith” along with “offend” and “insult” — leaving “humiliate” and “intimidate” and even adding “human dignity”.

—————————————

By the way I note there is a rare opportunity to actually have some input into the appropriateness of “offence” in the current statutory consideration of a tort of serious invasions of privacy.

Following the ALRC and the VLRC recommendations, it seems to be heading in a firm drafting direction that the plaintiff should be required to meet an objective test of seriousness or offensiveness: that the invasion of the expected privacy would be highly offensive to a person of ordinary sensibilities. There is case law in UK which articulates it in this way.

In the light of all the gnashing-of-sackcloth following the Bolt decision re “offence” here’s a chance to have a say for a new way.

A bold initiative (call-to-action in marketing parlance): how about a pithy submission from ScepticLawyer contributors on this narrow issue?? Maybe suggesting human dignity as a better objective test, with attribution to Ken Parish and the shoulders he stands on??

There is a whole new chapter considering the law of privacy (great stuff up to date on developments in UK) and even an explicit reference in the forward penned by Justice McColl of the Supreme Court of NSW Court of Appeal to the September 2011 statutory privacy tort issues paper.

I think the point KP was trying to get as is that the Lange defence is a extension of the common law defence of qualified privilege; an extension required due to the implied right of freedom of communication in the constitution. It represents the bare minimum ‘freedom’ required for the type of representative democracy read into the constitution by the HCA. Because this requirement is rooted in the constitution and not simply in common law, statutes that conflict with this requirement and further reduce the freedom of communication could be unconstitutional to the extent they do so.

Where I see things a bit differently is in seeing ‘good faith’ and ‘ill will’ as not covering the spectrum of motivating actuators. The comments in Lange about vigour or pungency being insufficient are in the context of the Lange defence and focused around demonstrating ‘ill will’; ‘ill will’ or malice being sufficient to negate the Lange defence. That is once you’ve demonstrated that you had reasonable grounds and took reasonable actions to verify the imputed facts (as set out in the next paragraph in Lange), the vigour or pungency of the defamatory statement is not in itself sufficient to demonstrate ill will and defeat the defence.

However I don’t read Bromberg J as saying Bolt failed in the s 18D defences because he was motivated by malice or ill will based solely on the manner which Bolt expressed his views in the articles. Rather, the manner was one factor in determining that the articles were not published in ‘good faith’. ‘Good faith’ being more than just not being motivated by malice; and importantly including not being careless with how unverified facts are handled.

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